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Surveillance reform: The FISA reauthorization ‘debate’ distraction 

Merrick Garland, Matthew Olsen
FILE – Justice Department’s Assistant Attorney General for the National Security Division Matthew Olsen speaks during a news conference at the Department of Justice in Washington, Jan. 27, 2023, as Attorney General Merrick Garland listens at left. The Biden administration officials urged Congress on Tuesday to renew a surveillance program that the U.S. government has long seen as vital in countering overseas terrorism, cyberattacks and espionage operations. The program, which is under the Foreign Intelligence Surveillance Act, or FISA, is set to expire at year’s end unless Congress agrees to renew it. (AP Photo/Carolyn Kaster, File)

Hard deadlines seem to be what’s required to get Congress to act on much of anything these days. A New Year’s Eve 2023 legislative deadline on one item is of particular note — on that day the infamous Foreign Intelligence Surveillance Act Section 702 expires, unless Congress elects to renew it. 

The speculation and posturing over the fate of FISA Section 702 is already underway. 

Indeed, on Feb. 28 at the Brookings Institution, Assistant Attorney General Matt Olsen made the Justice Department’s pitch for reauthorizing Section 702. As expected, he trotted out very familiar, shop-worn canards that have been used since the law was enacted nearly 15 years ago (i.e., 702 is a “vital tool” as well as what-ifs where “702 could prove critical”, etc.) 

Olsen did address the highly publicized and massive noncompliance issues with the program, claiming that still more internal “key reforms” are designed to build “a culture of compliance” with the law and the Fourth Amendment. Yet after so many prior failures to abide by the law, why should anyone believe that still more self-oversight by the Justice Department will change anything?

At the macro political level, this “debate” over whether to reauthorize Section 702 is a distraction for two reasons.

First, despite Olsen’s claims that the statutory framework that existed before 702 “couldn’t keep pace with evolving technologies and dynamic threats,” in reality, the worst attack on American soil since Pearl Harbor didn’t happen because we failed to collect intelligence on the eventual attackers. We did. Lots. 

As both the Congressional Joint Inquiry in 2002 and the 9/11 Commission in 2004 found, the Sept. 11, 2001 terrorist attacks on the United States succeeded because the National Security Agency (NSA), Central Intelligence Agency (CIA), and Federal Bureau of Investigation (FBI) failed share and act on Al Qaeda terrorist-related information they already had in their possession. But rather than wait for the findings of those reports and reform how NSA, CIA, and FBI share and act on threat information, the Bush administration instead launched a new, secret, and unconstitutional mass surveillance program. 

It was the December 2005 New York Times revelation of the existence of then-President George W. Bush’s STELLAR WIND mass surveillance program that first triggered a congressional attempt to make an illegal spying operation legal. The solution, enacted in 2007, was dubbed the “Protect America Act” (PAA). The ACLU called it the “Police America Act” and bemoaned the bill’s “bulk collection” language. This was a feature which allowed the government to ignore the Constitution’s individual, specific probable cause warrant requirement and, instead, get a single warrant to collect communications on many people at once. 

Detractors managed to secure a “sunset” provision (i.e., expiration date) in the bill, but it was little more than a symbolic victory. The PAA’s replacement, the FISA Amendment’s Act (FAA), included the same “bulk collection” general warrant authority as the PAA, as well as no meaningful court oversight. It became law in 2008 and has been renewed repeatedly since. 

It also has a multi-year track record of being violated, specifically with the FBI engaged in so-called “backdoor” searches of data on Americans allegedly “incidentally” collected while targeting the communications of foreigners. And we’re talking about millions of such searches. 

Those who support renewal of Section 702 claim the program is invaluable. Yet that claim has never been validated by Congress’s watchdog, the Government Accountability Office. And prior government claims about the effectiveness of other “must have” surveillance programs have been exposed as false

Secondly, wasting time reforming a law that shouldn’t exist will come at the expense of examining (and ideally terminating) a range of surveillance powers and activities that also should not exist. 

A prime example is the FBI’s use of so-called “Assessments,” a form of investigation that requires no criminal predicate to launch, can be renewed repeatedly, allows FBI agents to run informants against a person or group, conduct physical surveillance of the person or group, and perform classified and commercial database searches on the target.

The Cato Institute’s Freedom of Information Act (FOIA) campaign has uncovered FBI Assessments targeting religious groups (Christian and Muslim), voter education groups, and government transparency groups, among others. 

Another excessive surveillance power is the rather broad authority then-Attorney General Bill Barr gave to the Drug Enforcement Administration (DEA) to surveil people protesting the murder of George Floyd. Cato is still awaiting documents from the Justice Department about the program and whether it’s still active. 

Of even greater concern is the potential domestic surveillance abuse carried out under the Reagan-era Executive Order 12333, the day-to-day operational guidance and authority for America’s multiple intelligence components. The Privacy and Civil Liberties Oversight Board (PCLOB) has been harshly (and justly) criticized for its own failure on EO 12333 oversight. Cato itself has a FOIA lawsuit underway against the PCLOB for these very kinds of records. 

These and many other domestic surveillance programs, activities, and abuses—whether acknowledged or still secret—demand Congress do far more than argue over whether FISA Section 702 should be renewed. 

It has been nearly 50 years since the late Sen. Frank Church (D-Idaho) led the most comprehensive examination of federal domestic surveillance abuses in U.S. history. The country is long overdue for a “Church Committee 2.0” to examine everything that’s happened since then. 

The goal should be to surface, and end, domestic surveillance programs that should not exist and restore a pure, probable cause, individual warrant-based standard for federal agents to use any surveillance tool—physical or digital. 

Many of these programs have already been abused by politicians and bureaucrats who have no doubt also expressed the “flaming zeal for republican government” of which James Madison spoke in Federalist 57. Nonetheless, these politicians have simultaneously undermined Madison’s warnings through their actions. 

If ostensibly well-meaning people can create such constitutionally violative programs, what happens if people with no regard at all for the Bill of Rights gain access to and control over these programs? 

Given the alarming, and continuing, societal drift towards political authoritarianism in America, eliminating such programs while we still have the chance will literally mean the difference between a future of freedom or a turnkey tyranny. 

Former CIA analyst and ex-House senior policy advisor Patrick G. Eddington is a senior fellow at the Cato Institute. 

Tags FISA Section 702 George W. Bush Matt Olsen

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